It is hard not to think that midwives are under attack in Maryland.

Lippman, Semsker & Salb is proud to be a key legal services provider to the community of midwives in Washington and Maryland. Unfortunately, we find our hands to be full to overflowing as we try to help numerous midwives defend themselves against meritless attacks.

While the Maryland Board of Nursing is telling delegates in Annapolis that they are not prosecuting professional midwives for engaging in the practice of medicine without a license, the opposite appears to be true.

One Wednesday, March 21, 2012, Lippman, Semsker & Salb lawyers completed a hearing in defense of one such midwife. Karen Carr was accused by the State of Maryland of engaging in the practice of medicine without a license. The State argued that Karen practiced medicine when attending to the births of three babies. The prosecution should be an embarrassment to every Maryland citizen.

First, rarely has a prosecution been brought based on such a deplorable investigation. The Government argued that Karen practiced medicine in one case involving “Patient A”. It is true that “Patient A” was attended to by a midwife — but her midwife was not Karen Carr! Patient A was not able to come to the courthouse, but both her husband and her midwife both came and testified not only that Karen was not the midwife but also that no one from the State of Maryland ever contacted them to ask the simple question, “What is the name of the midwife who assisted you?”

The Government argued that Karen practiced medicine in another case involving “Patient C”. Karen Carr had provided midwifery services to “Patient C” for two prior babies. Patient C was far along in her pregnancy but she had not yet called on Karen to arrange for Karen’s assistance at the birth when she began to suffer some discomfort. Her husband called Karen, and Karen sent them to the hospital. Even though Karen had never treated “Patient C” for this pregnancy, the State of Maryland insisted that she had somehow engaged in the practice of medicine based on her interactions with “Patient C”. On the morning of the hearing, the prosecutor dropped those charges, but only after months had passed during which Karen was subjected to this false accusation.

The Government argued that Karen practiced medicine in one case involving the birth of “Twin B”. An Old Order Amish couple had twins. The births were attended to by Karen and another midwife. Tragically, one of the twins failed to breath on his own at the pace which he should have. The Government complained about information that one of the midwives gave to emergency providers and the parents — and insisted that it was Karen Carr who was speaking. Even after the emergency providers gave physical descriptions of the midwives, and descriptions and photos made clear that it was not Karen who said those things, the State insisted and insisted that it was Karen who was at fault.

Second, the State’s case was not only an attack on midwives but perhaps more importantly an attack on the families who choose to deliver their babies at home.

The core of the State’s argument was that the midwife caused “Twin B” to be deprived of medical treatment. This is a frequently-heard complaint by doctors and prosecutors — but it is based on the arrogant assumption that parents do not have the ability to form their own opinions and make their own decisions. “Twin B”‘s parents, an Old Order Amish couple, were well aware of the risks of declining medical care but they did so based on their beliefs about how the world works and based on their religious beliefs and customs.

A fundamental problem with the State’s prosecution is that it is based on the assumption that childbirth is inherently dangerous and must be medicalized in order to avoid unnecessary risk. Midwifery takes the view that childbirth is a natural process that does not reflect an ailment. Childbirth does not require “treatment”. Attending a birth is not the practice of medicine.

In case after case across the country, judges are finding again and again that midwifery is not the practice of medicine; that they are two separate disciplines. We can hope that Maryland will follow that trend and pass a law to ensure the right of a woman to have a midwife attend to the birth of her baby.